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Malaysia: Perspectives: The Subashini case

Source:

Malaysian Bar / Malaysiakini / NST

News and commentary on a Hindu woman, Subashini, who launched an appeal after being told to go to the 'Syariah Court' in her dispute with her Muslim convert husband over her matrimonial and custodial rights.

[1] Federal Court completes Subashini hearing

The decision of where jurisdiction is vested should be based in the enacted law from which the matter arises, lawyer Malik Imtiaz Sarwar told the Federal Court today as it wrapped up its hearing on the R Subashini case.
Representing secretary Subashini, Malik told the three-member Bench led by Justice Nik Hashim Nik Abdul Rahman that recent case law held that courts have to consider the relevant legislative provision said to vest jurisdiction in the respective courts.

“Jurisdiction is vested in the High Court and syariah court by enacted law. The marriage between Subashini and her husband was made under civil law, Law Reform (Marriage and Divorce) Act 1976,” he said.

“The court must follow this decision unless it can be established that the decision (in those case law) is wrong, uncertain, unjust, outmoded or obsolete.”

Subashini, 28, a Hindu, is trying to stop her 31-year-old husband T Saravanan - who now goes by the name of Muhammad Shafi Saravanan Abdullah - from taking matrimonial proceedings to the Syariah Court.

Her battle began when her husband converted to Islam in May 2006 and converted their eldest son, Dharvin Joshua, 4, as well.

The husband then launched proceedings in the Syariah Court for divorce and custody of their second son, Sharvin, 2. He is represented by Mohamed Haniff Khatri Abdullah.

Malik also rebutted Haniff’s earlier argument that Section 51 of the Law Reform (Marriage and Divorce) Act 1976 (LRA), which governs civil marriages, was unjust and unconstitutional.

The provision states that only a non-Muslim spouse can become the petitioner in a divorce petition and applicant in the civil court, while the Muslim spouse is compelled to remain as a respondent.

“Section 51 was drafted to protect women and children against (the actions of) Muslim converts. The husband cannot shield himself from responsibility under LRA by shielding himself behind Article 121(1A).

“Conversions such as his (Muhammad Shafi’s) could undermine the legislative scheme put in place for all the parties including the children.”

Article 121(1A) states that the civil court has no jurisdiction on matters under the purview of the Syariah Court.

Parent’s right

On the issue of Dharvin’s conversion, Malik noted that Article 160 read with the 11th schedule of the Federal Constitution provides that words in the singular also includes the plural and vice-versa.

Muhammad Shafi has contended that he had a right to convert his child because Article 12(4) states the right of a ‘parent’ to determine the religion of a child.

“Article 12(4) entrenches the right to choice of religion of both parents. This is consistent with guarantee of gender equality in Article 8(2),” he said.

After he concluded his submission, Malik was quizzed by judge Azmel Ma’amor about the position of Islamic law in the country and whether remedy is afforded for Muslim converts in civil law.

Malik explained that, for religious law and rulings to have an enforceable effect on an individual, it must first be codified. Any law that is not codified is not recognised by the courts and is therefore not enforceable.

The other judge presiding over the case is Abdul Aziz Mohamad.

The Bench reserved judgment, saying it would require more time to go through the written submissions on the appeals concerning the divorce and custody dispute.

“There are too many points in law to be considered. We will need more time to look at it, the decision will be on date to be fixed,” Nik Hashim said.

The Federal Court is to deliver judgement tomorrow in two landmark cases — one involving a suit by the Malaysian Bar challenging the appointment of a law lecturer as a judicial commissioner and the other an appeal by a Hindu mother of two who was told to go to the Syariah Court in her dispute with her Muslim convert husband over her matrimonial and custodial rights.

The Federal Court reserved its judgement on Oct 22 on the interpretation of the Federal Constitution in the suit brought by the Malaysian Bar challenging the appointment of Dr Badariah Sahamid as a judicial commissioner.

The Malaysian Bar wants the appointment of Universiti Malaya lecturer Dr Badariah declared null and void and of no effect on the grounds that the appointment contravened Articles 122AB and 123 of the Federal Constitution which required a person to be a practising lawyer for 10 years before he or she could be appointed as a judicial commissioner.

In the custody case, R.Subashini, 29, a former secretary, is appealing the Court of Appeal’s 2-1 majority decision on March 13 ruling that her husband Saravanan alias Muhammad Shafi Abdullah, 32, could go to the Syariah Court and commence proceedings to dissolve their marriage.

The appellate court held that the Civil Court cannot stop a Muslim convert from going to the Syariah Court to dissolve his marriage with his non-Muslim spouse or from initiating proceedings relating to custody of their children.

Subashini had brought her appeal to the Court of Appeal and Federal Court in an attempt to reverse the Family Court’s decision to set aside her ex-parte injunction to temporarily prevent Saravanan from commencing proceedings in the Syariah Court over their marriage or conversion of their younger son.

They have two children. Saravanan claims that the elder child had converted to Islam with him.

On Sept 24, Federal Court Judge Datuk Nik Hashim Nik Ab Rahman, who headed the three-man bench, said the issues involved many constitutional points and the court needed time to consider the submissions of both parties. The other two judges were Datuk Abdul Aziz Mohamad and Datuk Azmel Ma’amor.

The fate of whether an Indian Hindu wife can seek justice in the civil courts - despite her Islam-convert husband initiating divorce proceeding in the syariah courts - will be known tomorrow. The Federal Court - the country’s highest court - will announce their decision three months after lawyers from both sides of the controversial case made their final arguments.

The three-member panel comprising justices Nik Hashim Nik Ab Rahman, Abdul Aziz Mohamad and Azmel Ma'amor will decide whether the civil or syariah court is more authoritative on the issue of divorce when one spouse converts to Islam - an issue that has been a long-standing moot point in the trial.

Subashini, 28, is trying to stop her 31-year-old husband, T Saravanan - a Hindu who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah - from taking their divorce and custody proceedings to the Syariah Court.

Saravanan converted in May 2006 along with their eldest son, Dharvin Joshua, 4. The husband then launched proceedings in the Islamic syariah court for divorce as well as custody of their second son, Sharvin, 2.

During her appeal to the lower Court of Appeal on March 13, justices Suriyadi Halim Omar and Hassan Lah - who made the majority 2-1 decision - told her to take her case before the Syariah Court instead, while justice Gopal Sri Ram dissented.

According to the majority decision, the injunction sought by Subashini was unnecessary because the Syariah Court is competent enough decide on the matter. However, on March 30, Subashini was granted an interim injunction by the Court of Appeal restraining Saravanan from pursuing his claims in the Islamic court.

The injunction also effectively restrained him from converting their youngest son to Islam and from pursuing his custody claims in the Syariah Court.

It was also held in the landmark ruling that a Muslim could apply to the Islamic court to convert his or her underage children without permission from the non-Muslim spouse.

Three possible outcomes

There are three likely possible outcomes from the Federal Court tomorrow:

1. The court may decide against Subashini on technical grounds - over the date of Subashini's divorce petition which was within three months of her husband's conversion date.

According to the law, the petition should be filed three months after the conversion date. Subashini argued that she was not aware of the date of her husband’s conversion. If so, the case will be thrown out and lawyers can choose to file her divorce petition again.

2. The court may decide against Subashini on substantive grounds - that the Syariah Court has jurisdiction and orders her to take her case there. This effectively rules that civil courts have no say in conversion cases especially after syariah proceedings have commenced.

3. The court may decide for Subashini - she will get remedy in civil courts, her husband may not proceed further in syariah courts and he has to go back to civil courts because their marriage was originally solemnised under civil law.

Whatever the Federal Court decision, it will be considered a landmark judgment.

Aftershocks from Joy

This decision will be the second time the apex court is to decide on a matter involving the vexing issue of religious freedom.

Previously, the Federal Court held that the jurisdiction on issues concerning a Muslim who wants to convert to another religion lies with the Syariah Court.

In the landmark judgment by former chief justice Ahmad Fairuz Sheikh Abdul Halim, Lina Joy was held to remained a Muslim and her religious status cannot be removed from her identity card.

Born an ethnic Malay Muslim, and called Azlina Jailani, Joy was introduced to Christianity in 1990.

It has left her fighting authorities, first for her new name to be put on her identity card, then to have her former religion removed.

The controversial judgment has left the nation divided over one's freedom of religion as enshrined in Article 11 of the Federal Constitution.

"A divorce is like an amputation; you survive, but there's less of you," wrote the novelist Margaret Atwood. Although the law courts attempt "justice" in the break-up of a marriage, in reality nothing can assuage the pain and loss of a family and home torn asunder. In Malaysia, however, the already messy business of a matrimonial dispute is enormously compounded should one spouse choose to convert to Islam, which lands both parties in the grey area between two sets of laws -- the secular and the syariah. On Thursday, the Federal Court tried adroitly to find a way through the legal conundrums besetting R. Subashini, whose estranged husband T. Saravanan had become a Muslim, converted one of their two children and was seeking an annulment in the syariah courts.

The Federal Court's 2-1 split decision was a fair reflection of its dilemma. To widespread relief, the justices were, first and foremost, unanimous in deciding that the civil courts had jurisdiction over unions under the Law Reform (Marriage and Divorce) Act 1976. Indeed, it would be ridiculous, and grossly unjust, for a marriage, or any other contract, made under civil law to be liable for dissolution under a different law. Although the Federal Court rejected Subashini's application for an injunction to stop her husband from going to the syariah courts, it was but on a technicality, and she was allowed to refile her case. On the other hand and somewhat confusingly, the judges also held that her husband's recourse to syariah law was not "an abuse of process" because he was a Muslim. In the matter of the child's conversion, the judges decided, heartbreakingly for Subashini, that the consent of only one parent was necessary.

Even Solomon would have found it hard to trailblaze any middle ground in adjudicating on 4-year-old Dharvin's faith to the satisfaction of such an intransigent mother and father. But more significant was the judges' reluctance to conclude on the nub of the issue: whether jurisdiction ultimately belongs to the civil or syariah courts in cases epitomised by Subashini's. They did their best, weighing one against the other while sticking to the constitutional dictum that both courts were of equal standing. The judges allowed Subashini and Saravanan to pursue their separate avenues for redress, without intimating what might happen should the two paths conflict. Until there is more clarity in the laws for the couple's particular circumstances, they will have to go through another round of litigation before their travail can come to a close.

It’s no guarantee that just because you are born to a Hindu, Buddhist or Christian parent — or even a Muslim parent — that you will remain in that religion., says Dr Syed Ali Tawfik Al-Attas.

The Federal Court's judgment in the R. Subashini case on Thursday has gouged a deep groove in the legal system. The court decided that only civil courts could decide on the divorce of a union formed under the Law Reform (Marriage and Divorce) Act 1976. However, where one spouse has converted to Islam, the Muslim spouse has a right to seek relief from the syariah court. This means the non-Muslim spouse can only seek justice in the civil court, while the Muslim-convert spouse can seek justice in the syariah court. Two parallel avenues of justice. To complicate matters, the court also found that a parent could, unilaterally, convert a child without the consent of the other parent. ANIZA DAMIS speaks to Institute of Islamic Understanding of Malaysia (Ikim) director-general Dr Syed Ali Tawfik Al-Attas on the impact of the ruling on Muslims and non-Muslims in the country

Q: What is justice in Islam?

A: Justice means putting things in the right place. Everything has a place. In this case, if you make a contract in a civil ceremony, the right place to seek a termination of that contract would also be at that civil ceremony.
T. Saravanan @ Muhammad Shafi should have been told, by the people who furthered his interest in the religion, that Islam places a great emphasis on the making and breaking of contracts.

Here is a person who had conducted a marriage in a civil ceremony with R. Subashini, a Hindu. Therefore, in order to terminate that contract made in a civil ceremony, he should go back to that civil authority and break it.

Q: The Federal Court has decided only the civil court can dissolve the marriage. At the same time, it says Shafi also has a right to seek relief from the syariah court and get a divorce there.

A: Yes, but that divorce (in the syariah court) would not be recognised. It would only be recognised by the civil court as evidence that such a thing took place under syariah.

Q: What is Saravanan's responsibility to his family and what is Shafi's responsibility to his family? Are they different?

A: No, they are the same. It's not that he is Saravanan or he is Shafi. He is one and the same person, therefore, his responsibility remains. As a Muslim, his responsibility now is to teach his children about Islam. His responsibility is to educate them. The mother is not responsible for that -- she has not been entrusted with that responsibility.

Q: The second child is not Muslim at the moment.

A: Who said the child is not Muslim? According to Islam, all children are born with fitrah, meaning a natural inclination towards Islam.

You could be the product of a Hindu, Buddhist or Christian marriage, but for Muslims, children are not seen as Christian, Buddhist or Hindu. What we see is, "Here is Allah's majesty. Look at what He has created".

Q: So, then there would be no need for conversion?

A: Exactly. How can you convert a child? First of all, when you talk about conversion, you are talking about responsibility. In order to have responsibility, you have to comprehend what you are responsible for. Can a child of that age understand what he is being held responsible for?

Allah does not hold a child accountable. That is why in Islam, there is this thing called the age of baligh -- the age of maturity -- which is generally thought to be around 15. He is then ready to accept the responsibility entrusted to him. And he is also ready to accept accountability -- in other words, punishment. But before that, there is no punishment.

Q: So, why the need to convert?

A: There is no need. God Himself does not consider the child responsible.

Q: What about instances where one parent is of one religion and the other is of another?

A: Shafi's responsibility is to raise his children in accordance with Islam. His responsibility is to educate them, feed them, clothe them.

If he is worried that his sons will grow up to follow the mother's religion, well, his fears are unfounded. Because he is an example of that not being the case. It's no guarantee that just because you are born to a Hindu, Buddhist or Christian parent -- or even a Muslim parent -- that you will remain in that religion.

Q: What about people who convert without telling their families or wives, and suddenly, the wives find out they are no longer the wife.

A: If you start putting these things down as law, there is a tendency to look at it literally. There is no hikmah (wisdom).

Supposing there is a person who is not a Muslim, living in a large community of non-Muslims. He wants to become a Muslim. For his own safety, he might feel, "If I go and tell my community, they might not agree with it, and they might harm me. I will have to keep it silent".

But he still wants to convert and he does. There is also wisdom in that. Fearing for his safety, he doesn't inform other people. It could be that.

Q: In our multi-religious, multicultural society that is supposedly tolerant and respectful, what's the value of professing a religion if you can't practise it in the open?

A: Who said there is "no freedom" here? You can practise whatever you want in this country.

Q: But a person can't change her religion very easily.

A: You cannot extrapolate on one case. If you are referring to the Lina Joy case, how do you know that it's not easy to convert based on one case?

The Lina Joy case had nothing to do with religion or with whether she wants to convert or not. She just didn't want to follow the rules set by the National Registration Department.

The assumption is that the syariah system is unjust. Her lawyers supported this idea because they extrapolated that you won't get justice in the syariah court.

Therefore, the onus of responsibility now is not on the court and the individuals in the court, but on the religion itself.

That's ridiculous. In her case, too, the Muslims are upset and angry, not because she is leaving Islam, but because they are denied their responsibility to guide her on the path of Islam. Her lawyers are screaming that we are denying her freedom of religion. This is not the case. If she wants to be a non-Muslim, be a non-Muslim.
But the community of Muslims has a right to consult with her and ask her why she wants to leave Islam. For Muslims, Islam is the most complete, perfect religion. Therefore, it is strange to any Muslim for anyone to want to become a non-Muslim. This is the Muslim's right of responsibility -- he has a right, because he has a responsibility to the ummah to ask this question. If you deny them this right, obviously the Muslims will get upset.

Q: That's looking at it from a Muslim perspective.

A: Look at the non-Muslim perspective as well. They get upset if they are not allowed to consult with those who wish to leave the flock and convert to Islam.

Q: The thing that upsets non-Muslims is that Muslims are detained when they wish to leave the religion.

A: Does that have to do with religion or is it an administrative injustice? It has nothing to do with religion, as far as I am concerned. How they do it, that's another matter altogether. When you start talking about detention, rampas mayat (seizing the corpse) and so on, those are all administrative. I disagree with all that.

Q: Why is it happening?

A: Loss of adab (manners), ignorance, and people who are put in positions of power who really have no ilm (knowledge). They don't have any hikmah. They are just allowing these things to occur and they don't care. All in the name of religion. You can't do that.

I don't care whether your religion is Islam, Christianity, Hinduism or Buddhism. You cannot use this as a tool for your political considerations. And that's what's happening.

Now, in the Subashini and Saravanan case, I feel very, very badly for these two people, and for the children. These are the victims.

As far as Islam is concerned, the Prophet abhorred divorce. He really despised it. But he did say, "If there is no other choice but to divorce, let the divorce be amicable". Let it be settled in a nice way.

Why was Shafi not advised about this? Why are Subashini's lawyers not advising her like this? Ultimately, these are the people who are suffering. You think the lawyers and the judges suffer? No. These people -- Shafi, Subashini and the children -- they suffer.

This is a family case. Why is society sticking its nose into this?

Q: Maybe they have become the standard-bearers of a bigger fight?

A: Society has become confused. What is the bigger fight? Freedom of religion? Are you not free? Nobody is forcing anybody.

Q: Perhaps not in the case of Shafi, but there have been instances where non-Muslims convert to Islam to escape responsibility.

A: They are abusing the system. You cannot simply run to the syariah court, to Islam, to escape something else. Contracts are very important in Islam.

Q: But in the instance where someone says he is Muslim, you have to take his word for it that he is Muslim. Should the syariah court be giving him shelter, where perhaps he is seeking shelter for the wrong reasons?

A: When somebody claims he is a Muslim, you can actually judge if he really is a Muslim or not, by three things:
When he makes a contract, he breaks it; when he is given a responsibility, he shirks that responsibility; when he speaks, he lies. These are the signs of an evil person.

So, if a fellow claims he is a Muslim, and yet his actions do not reflect it, then he is not a Muslim. So if a fellow is converting because he wants to escape something, you cannot shelter him for that. You have to live up to your responsibility.

If a person has recently converted to Islam, there is no question about the division of property according to Islam, because he accumulated all that when he was not a Muslim.

Whatever property he accumulates after he becomes a Muslim, that's different. That belongs to him -- his wife has no say in that.

In my opinion, in the Subashini case, the wife should have custody of the children. They are still young. They need their mother.

Q: This judgment is different from Lina Joy, in that the court this time did not say "We have no jurisdiction". It said: "We have jurisdiction, but you can go to the other side (syariah courts) as well."

A: It's an ambiguous judgment. I'm worried. This is going to escalate, and people are going to start accusing Islam, and religion generally, as being the problem. But it's not Islam. This is not a problem just for Muslims, it is a problem for everybody.

Q: If the non-converting spouse refuses to file for divorce in the civil courts, but the Muslim spouse gets a divorce from the syariah court, does that absolve the Muslim spouse of his responsibilities to the civil law marriage?

A: That is a problem. On the one hand, the syariah court only listens to Muslims. On the other hand, civil courts cannot interfere with the syariah court. Therefore, if the husband decides to divorce and the wife doesn't, then we have a big problem. It doesn't make sense. If the syariah court grants a divorce, the civil court only takes that as evidence. But, strictly speaking, he is still married in the civil system.

As I said, they should have been told: "If you have a marriage in a civil ceremony to a non-Muslim wife, and now you have become Muslim, your responsibility is to go back and resolve that in a civil ceremony as well". That would solve the problem.

Q: What should the conclusion to the Subashini case be?

A: As I said earlier, if you have conducted your marriage in a civil ceremony, then you should conduct your divorce in a civil ceremony.

Shafi should be advised properly. The wife should also be advised properly. There should not be so much acrimony.

The wife says she is being treated unfairly. I agree with her. But I also agree with Shafi. He is also being treated unjustly.

Q: What would you say to people who see this as a Muslim/non-Muslim argument?

A: It's not. This has got nothing to do with religion. This has to do with administrative justice.

Q: So, what do we need to do to correct this administrative injustice?

A: Remove the people who are causing the problem, and put in the ones who are qualified to deal with it. Remove the unqualified, because they are misguiding society.